Employment law considerations when conducting an interview

Kate Palmer

29

September

2020

|

5

min read

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A thought leader on HR and employment law; Kate Palmer is the Associate Director of HR Advisory and Consultancy at global employment law consultancy, Peninsula.

Recruitment is a busy and difficult time for any team, no matter how large or small. But one of the most important aspects of the hiring process is to remain fair and considerate. 

When meeting candidates in person, such as in interviews, interviewers are more susceptible to bias so employers should be particularly mindful in these stages.

As such, there are essential UK employment laws you need to be aware of. For example, avoiding asking discriminatory questions in the interview is essential. If you don’t, you may have to face a costly and damaging employment tribunal. 

So, let’s take a look at the stance your business needs to take when hiring staff.

Understanding the protected characteristics

There are nine protected characteristics  and they’re in place to ensure businesses avoid unlawful discrimination. They are:

  1. Age
  2. Disability
  3. Gender reassignment
  4. Marriage and civil partnership
  5. Pregnancy and maternity
  6. Race
  7. Religion or belief
  8. Sex
  9. Sexual orientation

Whilst Trade Union membership is afforded protection in employment law, it’s not a protected characteristic under the EQA.

Under the Equality Act 2010, you must respect these rights. A breach of them has serious consequences under UK employment law.

The best way to avoid this is to ensure you treat all job candidates in a consistent and fair way. 

Also, consider the possibility of indirect discrimination. While direct discrimination is where an employer treats an employee worse than someone else for a specific reason, indirectly you can affect a staff member by accident. 

You need to keep such considerations in mind when going about your hiring process, from the job spec right to the interview stages and employment contract. 

It may seem like you couldn’t possibly do anything unlawful during a job interview, but if you say or do a certain thing, it could have major repercussions. 

Common employment law breaches during interviews

It’s important to highlight some of the regular ways in which businesses can fall foul to current UK employment laws. 

  • Including discriminatory requirements on a job spec (such as an age limit for applications or that you won’t consider pregnant candidates). 
  • Asking inappropriate interview questions, such as:
  • Relating to marital and family status. 
  • Personal details like height and sexual orientation. 
  • If a female candidate intends to have children. 
  • Asking about a person’s disability in an inappropriate way. 
  • Not making reasonable adjustments at interviews for disabled candidates. 
  • Making discriminatory remarks—directly or indirectly. 

This means you must be thorough in how you go about your interview process. But you’re free to set the recruitment policies you want. 

That’s as long as they’re in line with the Equality Act 2010. 

But employment laws are in place to block some aspects of that in order to ensure all professionals have a fair chance at a role. 

Choosing the right style of interview

Despite some businesses using interview methods such as casual interviews in cafes, these are less effective than structured interviews.

A structured approach allows a comparable assessment of candidates and gives each individual the opportunity to answer the same line of questions. 

They don't have to be overly formal, but providing a structure makes the process much fairer. The process involves:

  • Preparing well in advance of your candidate. 
  • Welcoming the individual to the interview.
  • Describe your business and the position the candidate is interviewing for. 
  • Explain your interview process. You can include information such as how many stages you’ll involve. 
  • Ask questions about your role. 
  • Allow the interviewee to explain their experience. 

During this time, you’ll typically sit in a room and ask the candidate questions and answers. 

But what should you ask your job candidate? This is one of the most common pitfalls in any recruitment process. You need to ask the correct questions. 

Interview questions that are illegal 

Some of the most common issues are with age, race, and sex (particularly towards women). 

Under the protected characteristics, you must avoid asking certain questions to certain groups. These include:

Racial discrimination questions. You’ll have right to work checks on staff, so you won’t need to ask questions such as:

  • What’s your native language? 
  • Where were you born? 
  • How long have you lived here?
  • Are you a UK citizen? 

Religious discrimination questions:

  • Will your religious beliefs affect your work performance?
  • Will you be able to attend work during your religious holidays?

Age discrimination questions:

  • Do you think you’re a little too old for this role? 
  • Aren’t you too young for this job?
  • Shouldn’t you be looking to earn more money at your age?

Sex discrimination questions:

  • Wouldn’t a man be able to do your job better?
  • Are you planning to get pregnant soon? 
  • Do you have any kids? 

So, you must avoid questions that show prejudice towards a candidate. 

In other words, where you openly show bias towards individuals of the opposite sex, race, or who are younger/older.

How to avoid illegal interview activity

Whilst you should try to avoid illegal questions at all costs, despite your best efforts you may still face legal consequences at some point.

If that’s the case, then you may look to get legal representation support to you through a court case. 

This could result in financial compensation to a job candidate. And this would also damage your business’ reputation. 

So, it’s good business practice to gain an understanding of employment law and discrimination—particularly with the Equality Act 2010. 

With a thorough approach, you should be able to avoid any legal action. To do this, make sure you: 

  • Have a professional writer produce your job specs. 
  • Have your job specs checked by a recruitment specialist
  • Plan your interviews carefully around each candidate’s requirements. 
  • Approach each interview with a consistent and fair frame of mind. 

The result of which is you can have a fair interview process, choose the best candidate, and benefit as a business going forward.